Complainant

Respondent

Parties

David  Allman

Padraig McCarthy t/a The Half Way Bar (amended at the hearing on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

O'Sullivan Quilter & Co.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043111-001

15/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043111-003

15/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043111-004

15/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043111-005

15/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043111-006

15/03/2021

The Complainant attended with his solicitor. Legal submissions were provided in advance of the hearing. Evidence was given under affirmation. It was the Complainant’s complaint that he was unfairly dismissed from his employment when the pub reopened following the first COVID-19 lockdown in September 2020. He further claimed that he did not receive a contract of employment or payment of wages due.

Mr McCarthy gave evidence under affirmation. He was represented by Ms McQuinn at the hearing. Submissions were also received in advance of the hearing.

The Complainant confirmed that his net wage was €10.10 and that he had not been provided with a payslips to confirm his gross wage. The parties were written to clarify the wages again. The Complainant responding again confirming his net wage.  No correspondence was received from the Respondent within the timeframe specified. Consequently, I am issuing the decision based on the gross hourly rate of €10.10 as per hour, that being the minimum wage in 2020.

It was the Complainant’s evidence that he worked 20 hours a week, earning €10.10 per hour, as a barman in the Respondent’s premises. He commenced his employment on 1 May 2018.

CA-00043111-001

The Complainant stated that he worked on a regular basis prior to the closure of the bar due to the COVID-19 restrictions introduced in March 2020. On 13 August 2020, the Complainant contacted Mr McCarthy’s father, with whom he regularly liaised about the bar, regarding the Temporary Wage Subsidy Scheme (TWSS) payment. The Complainant was advised to speak directly to the Respondent’s accountant, which he did. He was assured that the TWSS payment was still available to the Respondent.

However, the Complainant was subsequently informed by the Respondent’s accountant that the deadline had passed and that the Respondent had not applied for the payment subsidy on his behalf. During the same phone call, he was informed that his wages would be reduced by €82.50 to €117.50 per week. This change was made without notice or the Complainant’s consent.

The Complainant presented an email dated 15 September 2020, in which he raised a grievance regarding his reduced pay, the failure of the Respondent to apply for the TWSS payment, and the non-payment of his annual leave entitlement. A follow-up email was sent on 25 September 2020 regarding his public holiday and annual leave entitlements.

The Respondent replied on 27 September 2020, advising that the business could not afford to continue paying the Complainant’s wages. This response also addressed the annual leave and public holiday pay. The Respondent requested a meeting with the Complainant to discuss the matter.

On 7 October 2020, the Complainant responded, stating that he had been given only one hour’s notice before the bar reopened and was only then asked if he wanted to meet to discuss his return. The Complainant highlighted the hiring of new staff and stated that he “worked on the assumption” that he was “no longer required.” He concluded, “I will leave it with you, and you might just let me know where I stand.”

On 2 November 2020, the Respondent replied, claiming they had contacted the Complainant a week before the bar reopened but received no reply. After receiving the Complainant’s initial email in September 2020, the Respondent stated, “So my reading of that was you were not coming back, so I had to get your hours covered. And so, having you as an admin of the pub Facebook page didn’t seem right with what was going on; I’m sure you understand that.” Mr McCarthy again requested a meeting with the Complainant.

The next correspondence from the Complainant was sent on 15 March 2021, when his solicitor wrote to the Respondent, advising that her client had been unfairly dismissed in September 2020. The Complaint Form was received by the Workplace Relations Commission on the same date, with the dismissal date recorded as 18 September 2020.

CA-00043111-003

The Complainant stated that he was not paid his annual leave entitlement, amounting to €2,848.

It was submitted that there was no provision allowing the Respondent to deduct any amount from the Complainant’s annual leave entitlement. The receipt slips provided by the Respondent pertained to a custom within the bar of loaning money to customers. Some receipts presented pre-dated the Complainant’s employment, while others were duplicated. The total sum of these receipts was €810, not the €2,150 claimed by the Respondent.

CA-00043111-004

The Complainant withdrew this complaint during the hearing as it was a duplicate of a complaint regarding the payment of minimum notice

CA-00043111-005

It was the Complainant’s evidence that he did not receive a contract of employment.

CA-00043111-006

It was the Complainant’s evidence that he was not paid his minimum notice.

CA-00043111-001

The correspondence of August 2020 – March 2021 was also relied upon by the Respondent.

The Respondent disputed that the Complainant was dismissed, stating that he remained on the payroll until 27 December 2020. However, it was acknowledged that the Complainant did not work any hours after the premises reopened in September 2020. Mr McCarthy gave evidence that he had sent a text message to the Complainant in August 2020, prior to the bar reopening, but did not receive a response. He denied informing the Complainant that his position was no longer available.

It was accepted that additional staff had been hired, but Mr McCarthy stated that there was no requirement for two employees. By 2 November 2020, he received a call from an individual seeking employment, whom he subsequently hired. Mr McCarthy testified that this hire was not to replace the Complainant but to cover the Complainant’s shifts. It was suggested that by 21 September 2020, the Complainant had already been replaced, but Mr McCarthy denied terminating the Complainant’s employment.

During cross-examination, Mr McCarthy was questioned about why he did not meet the Complainant despite being open to doing so. He responded that he never anticipated the situation escalating to this point, citing their relationship as family friends.

Mr McCarthy admitted that he should have applied for the TWSS payment on behalf of the Complainant and accepted that it was unreasonable to reduce the Complainant’s wages. He also acknowledged that by late September 2020, he had removed the Complainant from the bar’s Facebook account.

CA-00043111-003

The Respondent accepted that the amount owed for annual leave pay was €2,848. Reference was made to a bar loan book, and receipts were produced. According to the Respondent’s evidence, the Complainant owed €2,150 up to and including 27 September 2020.

The Respondent also referred to a cheque issued to the Complainant in the sum of €698 as partial payment for annual leave.

CA-00043111-004

The complaint was withdrawn by the Complaint.

CA-00043111-005

The Respondent did not produce any evidence of a contract of employment.

CA-00043111-006

It was the Respondent’s evidence that he never terminated the Complainant’s employment and therefore, was not entitled to notice.

CA-00043111-001

The Respondent denies that he terminated the Complainant’s employment. However, it was accepted that, while the Respondent contacted the Complainant regarding the reopening, he subsequently reopened the premises without rostering the Complainant for work. The Respondent was aware of the Complainant’s grievances prior to reopening, and although he expressed a willingness to meet, no evidence was presented of any effort to reintegrate the Complainant into the workplace.

The Respondent hired other employees to cover the Complainant’s shifts, albeit after the premises reopened.

It can be concluded that Mr McCarthy adopted a hands-off approach to managing his employees. It is highly unusual for a part-time employee, such as the Complainant, to be directed to liaise with the Respondent’s accountant regarding an employer wage subsidy scheme. Furthermore, it is equally unusual for an employer to be unable to provide clear evidence of the gross figure earned by one of their employees.

While it is acknowledged that Mr McCarthy offered to meet with the Complainant to discuss the situation, the onus rested on him, as the employer, to make every effort to engage constructively with the Complainant and facilitate a return to work. This responsibility was particularly significant given the Complainant had raised grievances and that the parties described themselves as family friends.

On the balance of probabilities, I find that the Complainant was dismissed by the Respondent within the meaning of Section 1 of the Unfair Dismissals Act 1977.

The next question to address is whether the Respondent unfairly dismissed the Complainant.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require the disciplinary investigation process together with the decision to impose a sanction, dismissal in this case, and an appeal to be carried out independently of each other and objectively. An employee has the right to a fair and impartial determination of the issues being investigated as provided for in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) as well as case law.

Put simply no procedure was followed nor were fair procedures applied.

Accepting evidence presented by the Complainant, I find he was unfairly dismissed by the Respondent on 18 September 2020.  

CA-00043111-003

In the absence of a contract of employment containing a clause regarding the procedure for pay deductions or arrangements relating to “bar loans,” as well as the lack of any written evidence explaining the reason for the deduction and providing the Complainant with one week’s notice, it is not accepted that the Respondent was entitled to make any deduction from the Complainant’s annual leave entitlement.

With respect to the Respondent’s evidence that a cheque for €698 was paid towards the Complainant’s annual leave, this payment was not accepted by the Complainant. However, while no formal evidence of the payment was presented, the amount was referenced in emails dated 27 September 2020, and this was not disputed by the Complainant in his responding emails. Accordingly, it is accepted that the payment of €698 was made.

Nonetheless, I find that the remaining sum of €2,150 remains due to the Complainant.

I conclude that there has been a contravention of the Act.

CA-00043111-004

The complaint was withdrawn by the Complaint

CA-00043111-005

There is no dispute that a contract of employment was not provided by the Respondent to the Complainant in accordance with Section 3 of the Act.

CA-00043111-006

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 provides: -

“4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks”

In the absence of any evidence of payment, I find the Respondent was in breach of the Act.

CA-00043111-001

Section 7 of the Unfair Dismissals Act 1977 (as amended) sets out the jurisdiction for redress for unfair dismissal:

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.”

Section 7 (2) of the Act sets out guidance on the determination of the amount of compensation payable.

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

Finally, Section 7 (3) defines financial loss as “financial loss”as “in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”.

The EAT in Sheehan v Continental Administration Co Ltd ID858/1999 required a claimant “who finds himself out of work should employ a reasonable amount of time each weekday in seeking work…The time that a claimant finds on his hands is not his own, unless he chooses it to be but rather [is] to be profitable employed in seeking to mitigate his loss.”

The Labour Court in Access IT CLG/ Access IT v Galgey UDD2242 refers to the “very high burden” on a claimant set by Sheehan v Continental Administration Co Ltd ID858/1999 and “has the potential to cut significantly the levels of compensation that the Court can award, having regard to s.7 of the Act, in cases where compensation is determined to be the appropriate remedy and an unfairly dismissed employee has not made sufficient effort to mitigate their loss.”

The Complainant did provide details of his financial loss from March to September 2020 however, this was prior to the date of his dismissal. The bar reopened 21 September 2020 which was three days after his dismissal. No evidence was proffered as to his financial loss or efforts to mitigate his loss from the date of his dismissal to the date of the hearing.

In the circumstances. where there is no evidence presented of financial loss, I am limited by Section 7(1) (c) (ii) to awarding the Complainant a maximum of four weeks remuneration in the sum of €808.

CA-00043111-003

In terms of redress, Section 6(1) of the Payment of Wages Act 1991 provides:

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I find there has been a contravention of the Act.

I direct the Respondent to pay the Complainant compensation of the amount of €404 which is twice the net sum of the payment that should have been paid to the Complainant in respect of the week immediately preceding the date of payment (Section 6 (1) (a) (ii) and (b)).

CA-00043111-004

The complaint was withdrawn by the Complaint

CA-00043111-005

Section 7 (2) of the Act provides for redress:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

Having regard for the undisputed evidence, I find the complaint is well founded and order the Respondent to pay the Complainant compensation in the sum of €404, being two weeks’ renumeration.

CA-00043111-006

Section 12 (1) of the Minimum Notice and Terms of Employment Act 1973 provides redress in the following terms:

“12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”

I find there was a contravention of the Act and direct the Respondent to pay the Complainant compensation in the sum of €808.

Dismissal – Payment of Wages – Minimum Notice